TERMS & CONDITIONS

WELCOME TO SMASHMALLOW! WE HOPE YOU WILL BENEFIT FROM OUR PRODUCTS AND THIS WEBSITE (“SITE”). PLEASE READ OVER THESE TERMS AND CONDITIONS OF USE (THE “TERMS”) BEFORE USING THIS SITE AS YOU AGREE TO THESE TERMS AND OUR PRIVACY POLICY BY USING THIS SITE

Please email us at hello@smashmallow.com if you have any questions. Thank you for visiting our Site and for supporting our products!

CHANGES TO THESE TERMS

SMASHMALLOW may modify these Terms at any time, and such modification shall be effective immediately upon posting the modified Terms on this Site or via e-mail. Your continued use of this Site or of our products shall be deemed your acceptance of such changes. If you do not wish to be bound by these Terms, please do not use the Site or our products.

YOUR USE OF THIS SITE.

You agree to use this Site for your own personal, non-commercial use only. You also agree that your use of the Site and any of our products does not violate any applicable law or regulation. Finally, you acknowledge that you have the right, authority and capacity to enter into these Terms.

USE OF THIS SITE’S CONTENT.

The content of this Site is the exclusive property of SMASHMALLOW. You agree to not extract, modify, reproduce or distribute any of the Site’s content for any purpose other than for your own personal, non-commercial use, without the prior written consent of SMASHMALLOW.

SMASHMALLOW’S COMMUNICATIONS TO YOU.

You agree that SMASHMALLOW may send you e-mail to advise you of our products, changes to this Site or for other purpose.

COLORS.

We have made every effort to display the colors of our products as accurately as possible. However, we cannot guarantee that your monitor’s display will be accurate as the actual colors you see depend on your monitor.

INACCURACY DISCLAIMER.

From time to time there may be information on this Site that contains inaccuracies, omissions or typographical errors, that may relate to product descriptions, availability and pricing. We reserve the right to correct any inaccuracies, omissions or errors and to update information at any time without prior notice (including after you have submitted your order).

IMPROPER USE OF THIS SITE.

You agree not to use the Site to:

(a) harm others, including, but not limited to, infringing upon any intellectual property rights, rights of publicity or privacy, or any other rights of ours or of any third party;

(e) impair, disrupt, alter or otherwise interfere with the content, features, functions, or use of this Site;

(f) improperly display any TCP/IP packet header or part of the header information in any e-mail or other postings;

(g) gain illegal or unauthorized access to other computers or networks through hacking or other means;

(h) gain unauthorized access to this Site; or

(i) assist or permit any person to engage in any of the activities described above.

Even though the above activities are prohibited, you agree if you become exposed to them while using this Site neither SMASHMALLOW nor any of our officers, shareholders, directors, advertisers, employees or corporate partners will in any way be responsible for any damages caused by such exposure.

THIRD PARTY WEBSITES.

You agree that links to third party websites, including advertisements, are provided to you for convenience purposes only and that SMASHMALLOW does not guarantee, endorse or have responsibility for the content, products or services of any third party websites.

COMMENTS AND SUGGESTIONS.

We greatly value your suggestions, comments, feedback, postcards, ideas, and other submissions you may provide SMASHMALLOW (“Comments”). Comments shall be SMASHMALLOW’s property and the offering of Comments to SMASHMALLOW shall constitute your assignment to SMASHMALLOW of all worldwide rights, titles and interests in all copyrights and other intellectual properties in the Comments. Thus, SMASHMALLOW will own exclusively all such rights, titles and interests and shall not be limited in any way in its use, commercial or otherwise, of any Comments. SMASHMALLOW shall be under no obligation (1) to maintain any Comments in confidence; (2) to pay any compensation for any Comments or (3) to respond to any user Comments.

You agree that no Comments submitted by you will violate any right of any third party, including copyright, trademark, privacy or other personal or proprietary rights. You further agree that no Comments submitted by you will be or contain libelous or otherwise unlawful, abusive or obscene material. You are and shall remain solely responsible for the content of any Comments you provide to SMASHMALLOW.

COPYRIGHT INFRINGEMENT.

If you believe this Site contains content that infringes on copyrights in your work, please e-mail the following information to support@smashmallow.com:

(a) A description of the copyrighted work that you claim has been infringed upon and the location where the original or an authorized copy of the copyrighted work exists;

(b) A description of where the infringing material is located on our website;

(c) Your name, address, telephone number, and e-mail address;

(d) The signature of the copyright owner or of the person authorized to act on behalf of the copyright owner;

(e) A statement that you have a good-faith belief that SMASHMALLOW’s use of the content is not authorized by the copyright owner, its agent, or the law and

(f) A statement by you, under penalty of perjury, that the information in the notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.

LIABILITY.

TO THE FULLEST EXTENT PERMITTED UNDER LAW, YOU UNDERSTAND AND AGREE THAT THIS SITE, SMASHMALLOW, AND THEIR RESPECTIVE MANAGERS, MEMBERS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, OPERATIONAL SERVICE PROVIDERS, ADVERTISERS, MANUFACTURERS AND SUPPLIERS, SHALL NOT BE RESPONSIBLE FOR ANY LIABILITY, LOSS OR DAMAGE, OF ANY KIND WHATSOEVER, DIRECT OR INDIRECT, IN CONNECTION WITH OR ARISING FROM USE OF THIS SITE OR THE PURCHASE, CONSUMPTION OR USE OF ANY PRODUCTS SOLD THROUGH THIS SITE, INCLUDING, WITHOUT LIMITATION, ANY DIRECT, CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL OUR ENTIRE LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF THE ACTION, EXCEED ONE HUNDRED DOLLARS ($100).

UNDER NO CIRCUMSTANCES WILL WE BE RESPONSIBLE FOR ANY LOSS, LIABILITY OR DAMAGE, INCLUDING PERSONAL INJURY OR DEATH OR PROPERTY DAMAGE, RESULTING FROM OR ARISING OUT OF ANYONE’S ACCESS OR USE OF THIS SITE, ANY CONTENT POSTED ON THIS SITE OR TRANSMITTED TO USERS, ANY INTERACTIONS BETWEEN OR AMONG USERS OF THE SITE, WHETHER ONLINE OR OFFLINE, OR YOUR USE OR CONSUMPTION OF ANY PRODUCTS PURCHASED FROM SMASHMALLOW.

CONTENT IS FOR INFORMATIONAL PURPOSES ONLY.

THE CONTENT OF THIS SITE IS FOR INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE USED TO DIAGNOSE OR TREAT A HEALTH OR OTHER PROBLEM OR DISEASE. NEITHER THE CONTENT NOR ANY PRODUCTS OFFERED THROUGH THE SITE ARE INTENDED TO BE, NOR SHOULD THEY BE USED AS, A SUBSTITUTE FOR PROFESSIONAL DIAGNOSIS OR TREATMENT IN ANY WAY. DO NOT USE THE INFORMATION OR PRODUCTS AVAILABLE ON OR THROUGH THE SITE AS A SUBSTITUTE FOR PROFESSIONAL EVALUATION AND TREATMENT. ANY INFORMATION THAT YOU FIND HERE, RECEIVE FROM OUR AGENTS OR EMPLOYEES, ON WEBSITES WHICH WE LINK TO, OR OBTAIN THROUGH CONTACTS YOU MAY MAKE THROUGH THIS SITE, OR PRODUCTS OFFERED THROUGH THE SITE, SHOULD BE VERIFIED WITH YOUR PROFESSIONAL HEALTH CARE PROVIDER. PLEASE CONSULT YOUR PROFESSIONAL HEALTH CARE PROVIDER WITH ANY SPECIFIC HEALTH QUESTIONS OR PROBLEMS YOU MAY HAVE. IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY OR ANY CONDITION REQUIRING IMMEDIATE ATTENTION, CALL YOUR DOCTOR OR 911 IMMEDIATELY. WE DO NOT RECOMMEND OR ENDORSE ANY SPECIFIC MEDICAL TESTS, PRODUCTS, PROCEDURES, OPINIONS, OR OTHER INFORMATION THAT MAY BE MENTIONED ON OR PURSUANT TO THE SITE. RELIANCE ON ANY INFORMATION OR PRODUCTS PROVIDED BY US, OUR AGENTS OR EMPLOYEES IS SOLELY AT YOUR OWN RISK AND WE HEREBY DISCLAIM ANY AND ALL LIABILITY IN CONNECTION THEREWITH.

CANCELED ORDERS.

As a result, once you confirm your purchase no refunds are offered. However, if you cancel your order at least 48 hours prior to a scheduled delivery you will be credited your purchase price for a future order. For example, if you are scheduled for a Wednesday morning delivery, you must inform of us of any change in your order by Monday morning. After Monday morning, your order would be confirmed and could not be changed for any reason.

REFUNDS FOR DAMAGED PRODUCTS.

SMASHMALLOW will replace any product you can reasonably demonstrate was damaged during transit. If you received any damaged product, please e-mail us at hello@smashmallow.com.

PRODUCTS ARE SOLD “AS IS”.

ALL PRODUCTS ARE SOLD “AS IS” AND “AS AVAILABLE,” WITHOUT ANY WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF FITNESS FOR ANY PARTICULAR PURPOSE OR OF MERCHANTABILITY.

SMASHMALLOW DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING THE USE OR THE RESULTS OF THE USE OF ANY MATERIALS CONTAINED IN THIS SITE IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE OR OF OUR PRODUCTS. WE ARE NOT RESPONSIBLE FOR ANY LIABILITY ARISING FROM YOUR USE OF OR RELIANCE ON THE CONTENT, OR ANY OTHER MATERIAL APPEARING ON OR THROUGH THIS SITE OR OF OUR PRODUCTS.

WITHOUT LIMITING THE FOREGOING, WE ARE NOT RESPONSIBLE FOR ANY MALICIOUS CODE, DELAYS, INACCURACIES, ERRORS OR OMISSIONS ARISING OUT OF OR RESULTING FROM YOUR ACCESS AND USE OF THIS SITE. YOU (AND NOT SMASHMALLOW) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION OR ANY OTHER DAMAGES FROM YOUR USE OF THIS SITE OR OF OUR PRODUCTS.

PROFESSIONAL ADVICE DISCLAIMER

SMASHMALLOW does not provide medical or counseling advice. None of our services and nothing stated or posted on smashmallow.com is intended to be, and must not be taken to be, the practice of medical or counseling care. For the purposes of this agreement, the practice of medicine and counseling includes but is not limited to, diagnosis, prognosis, advice, psychiatry, psychology, psychotherapy or general health care treatment. Please seek the advice of your medical professionals as appropriate regarding the evaluation of any information, opinion or content on smashmallow.com.

BILLING, MEMBERSHIP & AUTO RENEWAL POLICIES

Some services offered by SMASHMALLOW are subscription based services which are subject to Auto Renewal Terms. Your subscription will be automatically renewed and your credit card will be automatically charged on a weekly, bi-weekly, monthly or quarterly basis, depending upon the billing terms for your account, for as long as you remain a member, but for no less than the minimum required term. You agree that SMASHMALLOW will not be required to send you any renewal or advance billing notifications or confirmations that your credit card has been charged. If payment cannot be charged to your credit card or if a charge is refunded for any reason, including chargeback, we reserve the right to immediately and without notice, either suspend or terminate your access and account. You are required to pay any amounts still owed to SMASHMALLOW at the time of the suspension or termination.

Promotional discounts and all other offers are not valid towards subscription based services.

INDEMNIFICATION.

You agree to indemnify and hold SMASHMALLOW harmless from and against any and all claims, liabilities and damages (including, but not limited to, reasonable attorneys’ fees and legal costs) arising out of or relating to: (a) your use of the Site or (b) your or anyone else’s use or consumption of any products that you purchased through this Site.

SEVERABILITY.

If any provision of these Terms is held to be unlawful, void, or for any reason unenforceable, that provision will be deemed severable and will not affect the validity and enforceability of the remaining provisions.

WAIVER.

No failure or delay by a party in exercising any right, power or privilege under these Terms shall operate as a waiver thereof.

STATUTE OF LIMITATIONS.

YOU AND SMASHMALLOW AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS SITE OR OF SMASHMALLOW’S PRODUCTS MUST BE BROUGHT WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OR SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

GOVERNING LAW.

These Terms and your use of this Site and of our products shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.

ARBITRATION.

For any dispute you have with SMASHMALLOW, you agree to first contact us at hello@smashmallow.com and attempt to resolve the dispute with us informally. In the unlikely event that we cannot resolve a dispute informally, we each agree to resolve any claim, dispute, or controversy (excluding claims for injunctive or other equitable relief) in connection with the Site or our products by binding arbitration by the American Arbitration Association (“AAA”) under the Commercial Arbitration Rules and Supplementary Procedures for Consumer Related Disputes then in effect for the AAA, except as provided herein.

The arbitration will be conducted in San Francisco County, California. Each party will be responsible for paying any AAA filing, administrative and arbitrator fees in accordance with AAA rules. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

Nothing in this Section shall prevent either party from seeking injunctive or other equitable relief from the courts for matters related to data security, intellectual property or unauthorized access to SMASHMALLOW.

ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND SMASHMALLOW ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATING IN A CLASS ACTION.

JURISDICTION.

You acknowledge that SMASHMALLOW is based in California and agree that the Site and our products do not give rise to personal jurisdiction, either specific or general, over SMASHMALLOW in jurisdictions other than California. You and SMASHMALLOW agree to submit to the personal jurisdiction of a state court located in San Francisco County, California or the United States District Court for the Northern District of California, for any actions for which either party retains the right to seek injunctive or other equitable relief, as described in the arbitration provision above.

ENTIRE AGREEMENT.

These Terms and all other provisions stated in or through this Site, including our Privacy Policy, state the entire agreement between the parties relating to use of this Site and the products sold through this Site. These Terms and any other provisions stated in or through this Site may be amended at any time by SMASHMALLOW without notice.

SMASHMALLOW REFER-A-FRIEND PROGRAM TERMS & CONDITIONS

As a Refer-a-Friend member (a “Referrer”), you are subject to SMASHMALLOW’s Terms of Use and SMASHMALLOW’s Privacy Policy (both available on our website), as well as the following additional Terms & Conditions for SMASHMALLOW’s Refer-a-Friend program:

Qualified Referral. A Qualified Referral is defined as a purchase made at www.smashmallow.com by a person (a “Referred Customer”) who arrives to our website by clicking your Refer-a-Friend program link. You are limited to one Qualified Referral for each Referred Customer; in other words, additional/repeat purchases made by a Referred Customer are not counted as additional Qualified Referrals.

Referred Customer. The Referred Customer and the Referrer cannot be the same person (for example, by using a different email address).

Referral Rewards. For you to earn referral rewards as a Referrer, the Referred Customer must complete an order greater than $25 in total value, minus all fees including taxes, discounts, shipping, returns, chargebacks, fraudulent payments, and/or other 3rd party fees.

Reward Payments. Rewards are payable in increments of $10. The maximum Qualified Referrals earned per calendar year may be no more than 50 Qualified Referrals. As a Referrer, you are responsible for any and all tax liability resulting from Referral Rewards.

Eligibility. Eligibility is limited to individuals only. SMASHMALLOW’s Refer-a-Friend Program cannot be used by businesses for affiliate lead generation as determined in SMASHMALLOW’s sole discretion. (Corporations are not people, my friend!)

No Spam. You must comply with all up-to-date “SPAM” laws. For example, emails must be created and distributed in a personal manner and bulk email distribution is strongly discouraged. Any distribution of your referral link that could constitute unsolicited commercial email or “spam” under any applicable law or regulation is expressly prohibited and will be grounds for immediate termination of your account and exclusion from SMASHMALLOW’s Refer-a-Friend program.

Right to Close Accounts. SMASHMALLOW reserves the right to close the account(s) of any Referrer and/or Referred Customer and to request proper payment if the Referrer and/or Referred Customer attempts to use the SMASHMALLOW Refer-a-Friend program in a questionable manner or breaches any of these Terms & Conditions or is in violation of any law, statute or governmental regulation.

Right to Cancel Program or Change Terms. SMASHMALLOW reserves the right to cancel the Refer-a-Friend Program or to change these Terms & Conditions at any time in its sole discretion. Any unclaimed referral rewards will be forfeited at that time.

QUESTIONS?

If you have any questions about our tasty product, please do not hesitate to contact us at hello@smashmallow.com.

Last Updated

These Terms were last updated July 2016.

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